Breach of Contract Advice and Information

If you are accused of being in breach of contract – you will need this advice and information to understand your options and the best way to approach the conflict.

“Breach of contract is a legal cause of action in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party’s performance.” (www.wikipedia.com)

A breach of contract can occur in many situations – common breach of contract occurrences are in employment conflicts, marriages, sale of property or goods, and in the provision of services.

Various types of breach of contract occur:

Minor breach

Material broach

Fundamental breach

Anticipatory breach

In a minor breach, the aggrieved party would not be allowed to sue for specific performances, only for actual damages. A material breach, however, is a failure to perform that permits the other party to either compel action or to claim for damages for non-performance. A fundamental breach is a breach so serious that it allows the aggrieved party to terminate the contract, and if necessary to sue for damages. In the case of employment, this would mean that the employer would be within his rights to terminate employment, and to claim for lost revenue due to the employee not performing his contractual duties.

Finally, an anticipatory breach is the unequivocal indication that one party will not perform his duties as per the stipulated contract. Here, the non-breaching party has the right to terminate the agreement prior to the breach actually being made.

Breaches of contract occur frequently within the bounds of employment contracts. Employees are more and more taking to the practice of “sms resigning”, giving 24 hours notice to the employer. This generally places the employee in breach of contract, as most employment contracts stipulate a longer termination period. Further to this, giving 24 hours is unlawful according to the Basic Conditions of Employment Act. (www.labourguide.co.za)

In these situations, the employer can sue for damages, lost revenue, lost resource acquisition costs etc. However, despite the laws being in place, this will be a costly and lengthy process for the employer, and the bottom line is that it would cost the employer less to just accept the situation and employ someone else.

This does, however, leave employers wide open to abuse and to blatant breach of contract. Daily minor breaches occur in most organisations, with unregulated or authorised Internet use, international telephone use, failure to deliver to standard, failure to deliver within time constraints etc. Sadly, the cost of recruitment today means that employers are forced to turn a blind eye to most of this. Unless the breach of contract is also illegal (i.e. looking at child pornography), employers have little recourse.

There is a lot of legal advice and information out there on breach of contract. The best thing to do would be to contact a lawyer, and understand the protocol within the specific situation you find yourself in, and work back form that starting point.